Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010016962020 Presented on 07-02-2020
Registered on 20-03-2022
Decided on 18-09-2023
Duration 03Y: 7M: 11D
Exhibit 08
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMARY SUIT NO. 291 OF 2020
Mr. Subhash Yelappa Kutade ]
of Mumbai, an adult Indian, ]
Inhabitant aged about 34 years, ]
Occupation Money Lender, ]
having his office and residence ]
address at Room No.14, Navjivan Seva Society, ]
Shivneri Nagar, Shingrewadi, Bailbazar, ]
Kurla West Mumbai-400 070. ]
(Mobile No.9967155818) ]...Plaintiff
VERSUS
Mr. Santosh Shantilal Waghela ]
of Byculla Mumbai an adult, Indian ]
Inhabitant, aged 40 years, Occupation ]
Service, having his Residence address at ]
Room No.16, “D” Block, Cement Chawl, ]
J.J.Vasahat Bycylla Mumbai-400 008. ]
And also having office address at ]
Sir J.J.Group of Hospital, Department: ]
Death certificate/Mrutyu Dakhala, ]
Employee No. (DMESSWM8001, Designation:- ]
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Sweeper, Ground floor, Byculla ]
Mumbai-400 008. ]...Defendant
Appearance :
Ld. Advocate Mr. Balbheem Patil for the plaintiff.
None for the defendant (Ex-parte).
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 18/09/2023.
J U D G M E N T
(Delivered on 18th September, 2023)
1. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of Rs.1,38,125/-. Brief
facts of plaintiff’s case may be summarized as under:
2. The plaintiff does the business of money lending. On
02-04-2019, the plaintiff lent to the defendant the sum of
Rs.1,25,000/- with interest at the rate of Rs.18% p.a. for which he
executed on 02-04-2019, the Demand Promissory Note in favour of the
plaintiff, and thereby agreed to repay the amount on demand with the
interest at the rate of Rs.18% p.a. thereon.
3. According to the plaintiff, inspite of demands and
reminders, the defendant failed to pay the said amount. Therefore,
the plaintiff issued the demand notice dated 30-09-2019 through his
advocate informing the defendant of the dishonour of the promissory
note and calling upon him to pay the amount. But inspite of receipt of
notice, the defendant failed and neglected to pay the amount. Hence,
the present suit. The plaintiff prayed for the decree for amount of
Rs.1,38,125/- with the further interest @ Rs.18% p.a. on the principal
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amount of Rs.1,25,000/- from the date of filing the suit till its full
realization.
4. The defendant was served with the writ of the suit
summons. The plaintiff has filed affidavit of service at Exh.2. Despite
service of the suit summons, the defendant has not caused his
appearance and therefore, the suit proceeded ex-parte against him by
the order dated 10-10-2022.
5. In support of claim, the plaintiff filed affidavit of claim at
Exh.3 and reiterated his contention for recovery of Rs.1,38,125/-.
along with the further interest at the rate of Rs.18% p.a. The plaintiff
has filed and relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.5 Promissory Note dated 02-04-2019
2 Exh.6 Copy of demand notice dated 30-09-2021 along
with postal receipt
3 - Money Lender Licence
4 - Cash Book & Ledger of loan period
6. To decide the present suit, following points arose for
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs.1,38,125/-
from defendant?
If yes, at what rate interest?
Yes
Entitled to interest @ Rs. 9%
p.a. on Rs.1,25,000/- from
07-02-2020, the date of filing
of suit till its full realization.
2. What order and decree? As per final order.
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R E A S O N S
As to points No. 1 & 2:
7. The plaintiff has filed claim affidavit in support of his
contentions of receipt of promissory note for consideration of
Rs.1,25,000/-. His oral testimony is supported by the original
promissory note dated 02-04-2019. The plaintiff enjoys presumption
under Section 118(a) of Negotiable Instruments Act, 1881, which
supports the contention of the plaintiff that the present promissory
note was executed for the valuable consideration of Rs.1,25,000/-. It is
appearing that the plaintiff is a money lender and he has money
lending licence, and he lend the money Rs.1,25,000/- on the interest
at the rate of Rs.18% p.a. The Demand Promissory Note placed on
record clearly support this case of the plaintiff.
8. The defendant has not appeared in the matter inspite of
the service of summons from this Court, which gives an inference that
the defendant has nothing to contest and he does not dispute the claim
of the plaintiff. In view of Rule 2 (3) of order XXXVII of CPC, owing to
failure of defendant to cause appearance, it needs to be presumed that
the defendant admits the allegations contained in the plaint. The
Promissory Note is of 04-04-2019 for the amount of Rs.1,25,000/-.
Therefore, I hold that the plaintiff is entitled to recover the principal
amount of Rs.1,25,000/- on the strength of promissory note.
9. It may be seen that the plaintiff has applied the interest
Rs.13,125/- at the rate of Rs.18% p.a. on Rs.1,25,000/- from
02-04-2019 to 02-11-2019. In view of provision of Section 79 of
Negotiable Instruments Act, when the suit is based on promissory
note, the plaintiff can be held entitled to the interest at the agreed
rate of interest i.e. @ Rs.18% p.a. from the date execution of the said
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promissory note till filing the suit. Hence, I hold that the plaintiff is
entitled to interest amount of Rs.13,125/-. Thus, the plaintiff is
entitled to recover the amount of Rs.1,38,125/-.
10. The plaintiff had agreed to pay the interest at the rate of
Rs.18% p.a. on the amount of Rs.1,25,000/-. Therefore, I hold that
the plaintiff can be made entitled to the further interest on the amount
of Rs.1,25,000/- from the date of filing the suit. The plaintiff has
prayed for the further interest at the rate of Rs. 18% p.a. However, I
am of the view that the same is excessive as compared to rate of
interest of Nationalized Banks. Therefore, having regard to the
provision of section 34 of the CPC, I am of the view that granting the
interest at the rate of Rs.9% p.a. on the principal amount would be
just, proper and reasonable. Hence, I hold that the plaintiff is entitled
to interest at the rate of Rs.9% p.a. on the principal amount, from the
date of filing the suit till its full realization and hence, I answer point
No.1 accordingly. In the result, in answer to point No.2, I proceed to
pass following order.
O R D E R
1) Summary Suit No.291 of 2020 is hereby decreed with the
costs.
2) The defendant shall pay an amount of Rs.1,38,125/- (Rupees
One Lakh,Thirty Eight Thousand, One Hundred and Twenty Five
only) to the plaintiff.
3) The defendant shall pay to the plaintiff simple interest on
Rs.1,25,000/- at the rate of Rs.9% p.a. from 07-02-2020, the
date of filing of suit till its full realization.
4) The plaintiff is entitled to get refund 2/3rd of the court-fees paid
by him.
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5) The decree be drawn up accordingly.
( K. P. Shrikhande )
Judge, City Civil Court, Gr. Mumbai.
Date- 18-09-2023 Court Room No.61
Mumbai.
Dictated on : 18-09-2023
Corrected and signed on: 21-09-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25-09-2023 at 12.15 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
18-09-2023
JUDGMENT/ORDER signed by P. O. on 21-09-2023
JUDGMENT/ORDER uploaded on 25-09-2023
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